Utah’s Laws

There’s been a lot of discussion of the Baby Emma case, spurred by a recent decision of the Utah Supreme Court.   It’s gratifying to have such lively discussion going on, but it can also be confusing to have so many topics at issue at once.  I wanted to use this post to separate out a discussion of the choices Utah has made with regard to its adoption law.

One thing this does is take us away from the facts of the specific case involving Baby Emma.  That’s one set of facts, but if you were sitting in the legislature in Utah, thinking about what the law should be, you’d probably also consider other possible scenarios.    And you’d think more broadly in terms of general policies–facilitating the adoption of children is one, protecting the rights of biologically related parents is another.   You might have to think about which one was more important and why, and then maybe you’d figure out what sort of legal structure would strike the right balance between whatever things you decided to consider.

I realize that is all quite abstract, but that is often the way one thinks about law when you are contemplating legislation.   It’s not like a judge deciding a specific case.  You are making general rules that will cover many circumstances.

With all that in mind, I wanted to consider the choice the Utah legislature made.   I think we can all agree that they’ve made it very hard for a man who is not married to the woman who gives birth to a child to object to the adoption of that child even where he is genetically related to the child.   He has to do exactly the right things and he has to do them in very little time.   Thus, it will often be the case that the adoption will be completed without his consent and over his objections.

In the comments in the last post you’ll find many statements about what is bad about this–mostly that it is unfair to biologically related unmarried men.      There’s some (though I think it is a little less spelled out) about how it is also bad for children–because it denies them the opportunity to be raised by the men who participated in their conception.

I want to take the time to articulate the competing arguments that might be offered to justify Utah’s law.   I don’t mean to suggest that I necessarily accept them.   (Indeed, to the extent they rest on an assumption that married parents are better, I reject the assumption.)  But whether you accept them or not, you should be able to at least state the arguments.  Really, you can only refute them after you’ve understood them.

Suppose Utah assumes that children do best in two-parent married families.   This is not an unusual assumption–you run into it in a lot of contexts.  It comes up where states bar unmarried couples from adopting and in discussions of single parents.  (Indeed, I’m fairly confident that if you looked back on the discussions here about single parents you’d find some people arguing that kids do better in two parent married families.)

Now if you accept the idea that children do best in two-parent married families, you might see two ways that the Utah policy helps ensure that the most children possible end up in just that sort of family.   First (and pretty obviously), more kids end up being adopted by married parents rather than remaining with the single dads.  Second, one way that men worried about the harsh treatment of single fathers can avoid that treatment is by marrying the child’s mother.  Once they are married, Utah law will present no problem.

There’s another potential argument in favor of Utah’s scheme–one I think is kind of interesting.   Consider the position of the single mother.   She may care for the child but she may not want to raise the child.  Thus, she’s willing to place the child with a qualified adoptive family.   But she may think that the idea of the single father raising the child alone is a bad one–at least some of the time, single mothers will have concluded that the men they were with when they got pregnant are not good parent material.   If he’s got the right to veto an adoption and plans to do so, she may feel that she has to retain and exercise her own parental rights, too.   So she ends up parenting when she doesn’t really want to and the child ends up with two parents who won’t have the best chance of getting along.   You could think this was bad and, depending on how common you think the situation will be, you could decide to shape law in a way that avoids the problem.

I think it is worth considering and discussing these rationales.  I’ll repeat once more–it isn’t that I think they must be winning arguments, but they are arguments to consider.


7 responses to “Utah’s Laws

  1. Utah allows single parents to adopt, as long as they are not in a cohabitating relationship. So in theory, the child could end up with a single adoptive parent.

    Adoption is relatively uncommon. I imagine most studies end up comparing mainly children raised by married biological parents to children raised by a single biological parent. I’d be curious to see how children raised by a single biological parent vs married adoptive parents fare on average. Some studies have shown adopted children have a much higher rate of mental health problems.

    Ultimately, though, I believe very strongly in biological parents being given the first chance to parent their children, so I don’t find Utah’s possible arguments persuasive at all. I do think, whenever possible, that children should grow up in their biological family. But a state should not be saying a father can’t have his child because unrelated people want the child. That’s a horrible public policy to have.

  2. Its not the mother’s job to decide whether the father is a fit parent or not, any more than it is the father’s job to decide whether the mother is a fit parent or not.

    Basically Julie you are suggesting that the courts should decide this based on a mother saying “I don’t like him.”

  3. I have a question that is purely information-seeking: when biological fathers veto an adoption, what happens? Are biological fathers required to then take custody of the child? What about the biological mother?

  4. Kisarita nails it!
    She should have to prove she’s protecting her child by keeping the child away from the father and by prove I mean show an arrest record and terms of probation that say he can’t be near kids. If she can’t do that she’s interfering with the childs right to be supported by him.

    And while we’re at it, why should he abandon his parental obligations just because she wants to? Julie your suggesting that the father just toss in the towell and give up on his kid, rob the kid of what he owes him/her in order to play to the lowest common denominator of laziness. Would it work that way in reverse? Hardly. If the dad opts not to do what he’s suppose to – is the mother forced to throw in the towell and give the baby up for adoption? No. Do mom’s have to have a plan to take their babies home? No.

  5. Julie – it would have been nice if you had provided a commentary on the stipulations, timelines, and access to information to protect the fathers rights. Without that it is impossible for valid commentary.

    In my reality a law would be just and fair and capable of being followed within the timelines specificed so that an ordinary citizen could expect to achieve to maintain and protect his/her rights. Not designed to create the outcome desired by a very specific industry within the state and religious intolerance.

    I also find the protections granted (none really) unacceptable when compared against any other consumer protection law within the state or states. I am also interested whether if the mother is a minor, if she is guaranteed a GAL or other non-biased representative before signing anything.

    Several states allow minors to sign legally binding contracts of surrender without any protection or unbiased legal representation which is problematic in the extreme.

    • Also a comparison to other states. Utah generally requires the father to register before the mother signs away her rights OR less than a day after and the time can only be extended under very limited circumstances (government holiday, things like that), AND some very specific details must be included. Other states typically give a much more reasonable time. It seems a more typical time frame in other states is 2-4 weeks after the birth of the child, while the information requested is more general, rather than asking about very specific plans for caring for the child.

  6. “…if you were sitting in the legislature in Utah, thinking about what the law should be, you’d probably also consider other possible scenarios. And you’d think more broadly in terms of general policies–facilitating the adoption of children is one, protecting the rights of biologically related parents is another. You might have to think about which one was more important and why, and then maybe you’d figure out what sort of legal structure would strike the right balance between whatever things you decided to consider.”

    I am sitting here in California, thinking about what the law should be not only for Utah but unilaterally for every state in the union. I say that because all American children deserve to be born with with identical legal rights regardless of the state they are born in or regardless of the state where they happen to reside. The first change I would make would be to eliminate parental rights as law currently describes them because rights are something an individual excercises with regard to their own person, not someone else’s. Children are not personal property and I don’t think its appropriate to say that anyone has a “right to” their child or another person’s child. I think that language leads society to other proprietary language being applied to children like using the term gift or donation to describe how a child came to be raised by a particular person.

    With regard to being protected and raised to adulthood, what do children currently have a right to?

    Lets not address the issue of father/no father just yet and focus on one person/potential parent at a time.

    It seems that children are currently entitled to be raised by the women who give birth to them. This is true in every state in the Union because the woman who gives birth is always the mother of the child for record keeping purposes and is always legally obligated to protect and raise that child. I think this is problematic and I’ll return to why in a second.

    Children are not currently entitled to be protected and raised by the females who reproduced to create them. Children are not entitled to rely uppon their immediate maternal predecessors for support during childhood. This is evident in the laws that permit the practice of egg donation or traditional surrogacy.

    Children are not currently entitled to be protected and raised by intended parents or adoptive parents. It would be tough to say that every child has a right to an Adoptive Mother or that preventing someone from adopting a child interfered with a child’s right to be adopted. If the child was already safe and protected failing to let them be adopted does not seem to me to violate the child’s rights.

    So far I have listed one thing the child has a right to and I’ve identified the particular person they have a right to expect it from. I believe that saying a child only has a right to be protected and supported by the woman who gave birth results in unequal treatment of infants with regard to who is obligated to I’d get into it more but I’m wondering if you think I’m choosing a fair starting place for conversations about parentage law.

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